You are a police detective and, though you lack probable cause, you are convinced that Amy Able is the mastermind behind a series of art thefts in the north end of town. You believe that Amy plans the thefts, hires local thieves, and then sells the artwork overseas. You know that her usual thief has been arrested on an unrelated charge, so you decide to arrange a meeting between Amy Able and a
confidential informant (CI) with a history of petty theft. At the meeting, your CI is wearing a wire to tape the conversations. During the meeting, Amy is reluctant to go ahead with more thefts, because she tells your CI that she is "out of the business" and wants to retire. At this point, your listening device malfunctions, but your CI later tells you he convinced Amy by threatening to go to the police and ruining her reputation as an art dealer. Amy reluctantly agrees to plan the heist and, several days later, meets with your CI to go over the details.
At this point, you know that she has committed sufficient acts under local law to be guilty of conspiracy to commit theft, and you can arrest her. You give the DA the transcript of the conversations recorded by the wire, and the DA says it is a "slam dunk.". What legal issues, if any, are raised by the facts? What should you do, if anything, as the detective on this case?
Entrapment is an action by the police persuading a person to commit a crime that the person would not otherwise have committed. Arguably, Amy Able was not going to commit any more thefts and only did so after being threatened by the confidential informant. If a private person, not connected with law enforcement, induces someone to commit a crime, no defensive entrapment can be used. The more involved the third party is with the police, as an informant or otherwise, however, the greater the argument that the individual is an agent of the police, which brings in constitutional considerations. In this case, it is quite likely that the court would consider the CI to be an agent of the police detective. The basic question is: Was this innocent person induced to commit a crime she never would have otherwise? Since Amy said she was going to retire, she could certainly argue that she did not want to commit additional crimes and was fearful of exposure after being threatened by the confidential informant. Another issue for our detective is that the part of the meeting that included the threat was not recorded and the district attorney is unaware of this fact. If the detective does nothing, it is likely that the case will go forward and entrapment will not be established. Is this right? The student should wrestle a bit with the ethical implications of failing to disclose this pertinent detail.
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